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2019 Supreme(Mad) 2855
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
R. Tharani, J.
Abhiyantha Sureka – Appellant
Versus
N. Ashish Karwa – Respondent
C.M.S.A. (MD) No. 35 of 2015
Decided On : 16-04-2019
Advocate Appeared:
For the Appellant : S. Meenakshi Sundaram for M.P. Senthil.
For the Respondent: G. Jereniah for G. Ghouse Kathiri.
Headnote:
Indian Succession Act, 1925 - Section 263 - Mortgage transfer - Allegation was made in ignorance or inadvertently - Petitioner is auction purchaser of property situated in Village measuring an extend which is subject matter of probate granted respect of Will alleged to have been executed Late mother of minor respondent had filed a suit in against Tamil Nadu Industrial Investment Corporation Limited Krishna Trading Corporation property which is the subject matter of probate was mortgaged to collateral security for financial assistance obtained by Sri Krishna Trading Corporation property was brought to sale by way of a public auction conducted and petitioner was successful bidder and a sale deed was executed in his favour and suit had been filed by the mother of minor respondent questioning the constructive possession –Held, Appellant failed to other legal heirs of the testators of the Will - In Will it is clearly stated that there is a mortgage made by testator regarding the suit property - Even then the appellant has not chosen to implead TIIC as a party to Probate proceedings contention of appellant is that even after the paper publication made in probate close relatives has not turned up to contest probate O.P - It is seen that appellant has not impleaded the other legal heirs trial Court after considering evidence and documents filed by both the parties has come to conclusion that there is a suspicious circumstances regarding the execution of Will is executed in language which unknown to the testator and his family members, why the other legal heirs are excluded from Will is not clearly explained by the appellant - Court has correctly passed order after adverting the scope and ambit of Section appellant has willfully omitted to implead TIIC as a party, though mortgage was specified in Will - This amount an just cause as narrated Section Indian Succession Act - Hence contention of the appellant is not accepted Court order clearly reveals that First Appellate Court after considering all documents and evidence and other materials available before Court has passed a detailed order regarding admissibility of Probate and decided that there are suspicious circumstances in execution of Will and has confirmed the order of Subordinate Judge in revoking probate O.P trial Court is having right and jurisdiction Section Indian Succession Act to revoke the probate - Hence contention of appellant is not acceptable and revocation granted - Appeal dismissed
JUDGMENT :
R. Tharani, J.
1. This Civil Miscellaneous Second Appeal has been filed against the Judgment and Decree passed in C.M.A. No. 8 of 2014 on the file of Principal District Judge, Tuticorin dated 27.04.2015 confirming the order passed in R.P.O.P. No. 179 of 2012 on the file of Subordinate Judge, Tuticorin dated 24.01.2014.
2. The appellant is the respondent in R.P.O.P. No. 179 of 2012. The respondent is the petitioner in R.P.O.P. No. 179 of 2012. The appellant herein filed Probate O.P. No. 16 of 2007 before the Sub Judge, Thoothukudi and she obtained an order on 28.07.2007.
3. The case of the petitioner in R.P.O.P. No. 179 of 2012 is as follows:
Minor Abhiyantha Sureka, has filed a Probate O.P. No. 16 of 2007 on the file of the Sub Judge, Thoothukudi in respect of a Will, dated 06.06.2006 and the petition was allowed on 27.08.2007. The respondent herein has filed a petition in R.P.O.P. No. 179 of 2012 to reopen the O.P. proceedings in Probate O.P. No. 16 of 2007 and to revoke the Probate granted to the petitioner/appellant herein. The Subordinate Judge, Thoothukudi allowed the petition in R.P.O.P. No. 179 of 2012 and revoked the order passed in Probate O.P. No. 16 of 2007. Aggrieved by that order, the appellant preferred an appeal before the learned Principal District Judge, Thoothukudi, where the appeal was dismissed, against which the appellant has preferred this Civil Miscellaneous Second Appeal.
4. The brief substance of the averments in the petition is as follows:
The petitioner is the auction purchaser of the property situated in S. No. 1409/3A of Meelavitan Village measuring an extend of 74 cents which is the subject matter of the probate granted in O.P. No. 16 of 2007, dated 28.06.2007 in respect of the Will dated 06.06.2006 alleged to have been executed by Late Shri Hari Prasad Sureks. The mother of the minor respondent had filed a suit in O.S. No. 5 of 2010 against M/s. Tamil Nadu Industrial Investment Corporation Limited, Ramnad and M/s. Krishna Trading Corporation. The property which is the subject matter of probate was mortgaged to TIIC in the year 1999 as collateral security for the financial assistance obtained by Sri Krishna Trading Corporation. The property was brought to sale by way of a public auction conducted on 30.11.2007 and the petitioner was the successful bidder and a sale deed dated 03.07.2009 was executed in his favour and the suit in O.S. No. 5 of 2010 had been filed by the mother of the minor respondent questioning the constructive possession taken by TIIC, auction held on 30.11.2007 and the execution of sale deed dated 03.07.2009.
5. The averments made in the plaint in O.S. No. 5 of 2010 reveals that a Will dated 06.06.2006 was executed by late. Hari Prasad Sureka bequeathing the property in favour of the minor respondent and the Will had been probated as per the order in O.P. No. 16 of 2007 dated 28.06.2007, by the Sub Judge, Thoothukudi. The probate order was marked as Ex. A7 and the Will was marked Ex. B2. The said Will did not fulfill the statutory requirements stipulated under Section 63 of the Indian Succession Act. The respondent did not add either TIIC or the kith and kin of the deceased Hari Prasad Sureka as a party to the probate O.P. The said Will is suspicious, since the testator had excluded his natural heirs viz. his wife and three sons and bequeathed the properties in favour of his granddaughter. Only when the petitioner was served with the copy of the plaint in O.S. No. 5 of 2010, he came to know about probate O.P. and filed this petition to revoke the probate granted in favour of Minor Abhiyantha Sureka.
6. The brief substance of the counter filed by the respondent in R.P.O.P. No. 179 of 2012 is as follows:
Until the grant of probate of the Will of Late. Hari Prasad Sureka, the TIIC did not bring the schedule property for auction and only on 30.11.2007 after 5 months from the date of grant of probate the alleged auction by the TIIC is said to have been taken place only. The petition
